Synopsis

Claimant was granted permission to file a late claim alleging a slip and fall at
New York City Technical College.

Case Information

UID:

2003-016-082

Claimant(s):

GABRIELA SCHIOP

Claimant short
name:

SCHIOP

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

107217

Motion number(s):

M-67275

Cross-motion
number(s):

CM-67356

Judge:

Alan C. Marin

Claimant's
attorney:

Friedman Levy & Goldfarb, P.C.By: David J. Kresman, Esq.

Defendant's
attorney:

Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG

Third-party defendant's
attorney:

Signature date:

October 10, 2003

City:

New York

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

This is the motion of Gabriela Schiop for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act") and to strike
defendant's sixth affirmative defense, which states that "[t]he City University
of New York is a governmental entity that must be individually named as a party
and served in accordance with Article 125 of the Education Law." Defendant
cross-moves to dismiss claim no. 107217 on the ground that it was not served on
the City University of New York ("CUNY"). Ms. Schiop's claim arises from a
September 5, 2002 incident in which she allegedly slipped and fell in the
hallway outside the cafeteria of New York City Technical College, one of CUNY's
senior colleges. See The Green Book, The Official Directory of the City of
New York, 2002-2003, pp. 73-77. In claim no. 107217, claimant names the
State of New York as defendant. CUNY and the State are separate and distinct
legal entities and the State is not a proper defendant in claims based on the
actions of CUNY. See, e.g., Perry v City of New York, 126 AD2d 714, 511
NYS2d 310, 311 (2d Dept 1987), citing, inter alia, Education Law
§6203. Moreover, it is undisputed that claimant failed to serve either her
notice of intention or her claim on CUNY. Section 11.a.(ii) of the Court of
Claims Act requires that both notices of intention and claims against CUNY shall
be served on both the Attorney General and CUNY. "It is well established that
compliance with sections 10 and 11 of the Court of Claims Act pertaining to the
timeliness of filing and service requirements respecting claims and notices of
intention to file claims constitutes a jurisdictional prerequisite to the
institution and maintenance of a claim . . ." Byrne v State of New York,
104 AD2d 782, 783, 480 NYS2d 225, 227 (2d Dept 1984), lv denied, 64 NY2d
607, 488 NYS2d 1023 (1985) (citations omitted).

In sum, this Court lacks jurisdiction over claim no. 107217 and thus Schiop's
motion for permission to file a late claim must be
considered.[1] In order to decide this motion,
six factors enumerated in the Act must be considered: whether (1) defendant had
notice of the essential facts constituting the claim; (2) defendant had an
opportunity to investigate the circumstances underlying the claim; (3) defendant
was substantially prejudiced; (4) claimant has any other available remedy; (5)
the delay was excusable and (6) the claim appears to be meritorious. The
factors are not necessarily exhaustive, nor is the presence or absence of any
particular factor controlling.[2]

The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
In this case, immediately following her fall, Schiop was taken to the college's
central office where a CUNY Public Safety Service Incident Report was filed,
which states that "[o]n Thursday, September 5, 2002 @1043 . . . student Gabriela
Schiop reported to central office that she slipped and fell by the Namm
Cafeteria 1st Fl Namm. Ms. Schiop was referred to the Student Health Services
area . . . where she was treated by Susan Gonnella MD. After being examined Ms.
Schiop left on her own." Claimant asserts that such report was prepared within
an hour and a half after the accident. See ¶7 of the August 15, 2003
affirmation of David J. Kresman (the "Kresman Aff.") and exhibit B thereto.
That same day, claimant also prepared a written statement on a New York City
Technical College form as to the accident and had two student eyewitnesses sign
the form. Such states that claimant was going to the cafeteria and "[t]here was
a substance on the floor that made me [fall] . . . There was no sign that will
[alert] you that there is a substance on the floor. . ." See exhibit C to the
Kresman Aff. On balance, I find that these three factors of the Act have been
met. See, e.g., Avila v State of New York, 131 Misc 2d 449, 500
NYS2d 626 (Ct Cl 1986) and Matter of Crawford v City University of New
York, 131 Misc 2d 1013, 502 NYS2d 916 (Ct Cl 1986), where notice was made
within two and 18 days, respectively.

As to an alternate remedy, it is undisputed that Schiop's sole remedy would lie
against CUNY in this Court. As to excuse, claimant states that "[t]he delay in
serving [CUNY] and failing to name [CUNY] pursuant to Education Law Article 125
was inadvertent." See ¶12 of the Kresman Aff. Such is not a valid excuse
for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v
State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied
89 NY2d 815, 659 NYS2d 856 (1997).

The final factor to be considered is merit. With regard to this factor,
claimant has submitted an affidavit stating that as she approached the cafeteria
entrance, she slipped on a "wet/slippery condition on the floor. As the result
of falling I sustained a tear of my left anterior cruciate ligament and a tear
of my medial meniscus. . . . After I fell, I felt and saw that there was a great
deal of this wet and slippery liquid on the floor. It felt like some kind of
oil. The liquid was clear. I saw a maintenance man from the school using a mop
to try to clean up the liquid on the floor near the entrance of the cafeteria.
I also saw that there were no signs or warnings that this wet and slippery
substance was all over the floor. . ." Claimant also annexes certain medical
records to her papers. See exhibits A and I to the Kresman Aff.

In short, I find that claimant meets the standard set forth in Matter of
Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395,
402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be
patently groundless, frivolous or legally defective" and (ii) upon consideration
of the entire record, including the proposed claim and any exhibits or
affidavits, "there is reasonable cause to believe that a valid cause of action
exists."

In view of the foregoing, having reviewed the parties'
submissions[3], IT IS ORDERED that cross-motion
no. CM-67356 be granted and claim no. 107217 be dismissed. IT IS FURTHER
ORDERED that motion no. M-67275 be granted to the extent that claimant shall be
permitted to file a late claim. Within forty-five (45) days of the filing of
this Decision and Order, she shall file her claim with the Clerk of the Court
and serve her claim on the Attorney General and the City University of New York
and otherwise comply with §§11 and 11-a of the Court of Claims
Act.[4]

October 10, 2003New
York, New York

HON. ALAN C. MARINJudge of the Court of Claims

[1]With regard to her late claim application,
Schiop has failed to submit a proposed claim with her papers. For the purposes
of this motion, the Court will assume that claim no. 107217, which is annexed to
her moving papers as exhibit G, is her proposed claim.

[3]The following were reviewed: claimant's notice
of motion with affirmation in support, exhibits A-J and memorandum of law in
support; defendant's notice of cross-motion with annexed affirmation; and
claimant's "Affirmation in Opposition and in Reply."

[4]Claimant shall use the text of the claim
annexed to her moving papers as exhibit G, but shall name as defendant the City
University of New York, not the State of New York.